Citation Nr: 9912343
Decision Date: 05/05/99 Archive Date: 05/12/99
DOCKET NO. 96-30 210 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for a skin disorder as
secondary to exposure to herbicide agents, dioxins, and
pesticides.
2. Entitlement to service connection for a seizure disorder
as secondary to exposure to herbicide agents, dioxins, and
pesticides.
3. Entitlement to service connection for a psychiatric
disorder as secondary to exposure to herbicide agents,
dioxins, and pesticides.
4. Entitlement to service connection for a disability
manifested by a kidney infection as secondary to exposure to
herbicide agents, dioxins, and pesticides.
5. Entitlement to service connection for a prostate disorder
as secondary to exposure to herbicide agents, dioxins, and
pesticides.
6. Entitlement to service connection for a disability
manifested by chest pain as secondary to exposure to
herbicide agents, dioxins, and pesticides.
7. Entitlement to service connection for a neurological
disorder of the torso and lower extremities as secondary to
exposure to herbicide agents, dioxins, and pesticides.
8. Entitlement to service connection for a disability of the
bladder as secondary to exposure to herbicide agents,
dioxins, and pesticides.
9. Entitlement to service connection for impotence as
secondary to exposure to herbicide agents, dioxins, and
pesticides.
10. Entitlement to service connection for dizziness as
secondary to exposure to herbicide agents, dioxins, and
pesticides.
11. Entitlement to service connection for post-traumatic
stress disorder (PTSD), to include the issue of whether there
was a timely substantive appeal to the Supplemental Statement
of the Case dated November 1996.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran had active military service from March 1964 to
December 1965. This appeal arises from a May 1995 rating
decision of the Columbia, South Carolina, regional office
(RO) which denied service connection for multiple
disabilities resulting from exposure to herbicides, dioxins,
and/or pesticides. The notice of disagreement was received
December 1995. The statement of the case was issued in March
1996. A supplemental statement of the case was promulgated
in May 1996. A timely substantive appeal was received in
June 1996. See VAOPGCPREC 9-97 (1997) (where an appellant
has not perfected an appeal and a supplemental statement of
the case is issued, the appellant has 60 days from the
issuance of the supplemental statement of the case to perfect
the appeal).
On August 21, 1998, a hearing was held at the RO before Iris
S. Sherman, who is a member of the Board of Veterans' Appeals
(Board) rendering the final determination in this claim and
who was designated by the Chairman of the Board to conduct
that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp.
1998). The issues on the title page of this decision were
those designated at the hearing as the ones the veteran
wishes to pursue.
The veteran raised the issue of service connection for
gastroesophageal reflux as secondary to exposures to
herbicides, dioxins, and pesticides during his August 1998
personal hearing. The RO has yet to adjudicate this issue.
Nevertheless, the issue of veteran's entitlement to service
connection for service connection for gastroesophageal reflux
as secondary to exposures to herbicides, dioxins, and
pesticides is not inextricably intertwined with the current
appeal. The issue is referred to the RO for the appropriate
action.
The Board also observes that the veteran filed additional
evidence in August 1998 that had not been previously
considered by the RO. However, in an attached statement, the
veteran waived review of the additional evidence by the RO
and the issuance of a supplemental statement of the case.
Therefore, pursuant to 38 C.F.R. § 20.1304(c) (1998), that
evidence need not be considered by the RO.
In view of the Board's finding that additional development is
warranted, the issue of service connection for PTSD will be
discussed in the Remand portion of this decision.
FINDINGS OF FACT
1. The veteran's claim for service connection for a skin
disorder as secondary to exposure to herbicides, pesticides,
and dioxins is plausible, and the RO has obtained sufficient
evidence for an equitable disposition of his claim.
2. The veteran has been diagnosed as having dermatitis, and
there is medical evidence that associates the onset of the
dermatitis to the veteran's exposure to Agent Blue during his
military service.
3. The preponderance of the evidence fails to confirm that
the veteran was exposed to herbicides, insecticides, or any
other hazardous chemical during his military service.
4. The veteran has been variously diagnosed as having a
seizure disorder, an anxiety disorder, depression,
prostatitis, degenerative joint disease of the lumbosacral
spine with radiculopathy, chest pains, dizziness, and bladder
and kidney infections; there is no evidence of a diagnosis of
impotence.
5. There is no competent medical evidence linking the
veteran's seizure disorder, an anxiety disorder, depression,
prostatitis, degenerative joint disease of the lumbosacral
spine with radiculopathy, chest pains, dizziness, or bladder
and kidney infections with any incident, accident, or
exposure that occurred during his military service.
6. The veteran's claims for service connection for a seizure
disorder, a psychiatric disorder, disability manifested by a
kidney infection, a prostate disorder, chest pain,
neurological disorder of the torso and lower extremities,
disability of the bladder, impotency, and dizziness as
secondary to herbicide agents, dioxins, and pesticides is not
plausible.
CONCLUSIONS OF LAW
1. The veteran has stated a well-grounded claim for a skin
disorder as secondary to exposure to herbicides, dioxins,
and, pesticides, and the Department has satisfied the duty to
assist. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159
(1998).
2. Dermatitis was neither incurred nor aggravated by
military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1998).
3. The claim of entitlement to service connection for a
seizure disorder as secondary to exposure to herbicides,
dioxins, and, pesticides is not well grounded. 38 U.S.C.A. §
5107(a) (West 1991).
4. The claim of entitlement to service connection for a
psychiatric disorder as secondary to exposure to herbicides,
dioxins, and, pesticides is not well grounded. 38 U.S.C.A. §
5107(a) (West 1991).
5. The claim of entitlement to service connection for a
kidney infection as secondary to exposure to herbicides,
dioxins, and, pesticides is not well grounded. 38 U.S.C.A. §
5107(a) (West 1991).
6. The claim of entitlement to service connection for a
prostate disorder as secondary to exposure to herbicides,
dioxins, and, pesticides is not well grounded. 38 U.S.C.A. §
5107(a) (West 1991).
7. The claim of entitlement to service connection for chest
pains as secondary to exposure to herbicides, dioxins, and,
pesticides is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
8. The claim of entitlement to service connection for a
neurological disorder of the torso and lower extremities as
secondary to exposure to herbicides, dioxins, and, pesticides
is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
9. The claim of entitlement to service connection for a
disability of the bladder as secondary to exposure to
herbicides, dioxins, and, pesticides is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
10. The claim of entitlement to service connection for
impotence as secondary to exposure to herbicides, dioxins,
and, pesticides is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
11. The claim of entitlement to service connection for
dizziness as secondary to exposure to herbicides, dioxins,
and, pesticides is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I Factual Background
The veteran's induction examination indicated that his skin,
neurological system, psyche, heart, and genitourinary system
were normal. The veteran was seen in May 1964 for complaints
of burning on urination. There was an initial impression of
a specific genitourinary infection. It does not appear that
medication was prescribed at this time. The test for this
infection was to be repeated. Two days later, he was seen
for balanitis. Medication was prescribed for this condition.
Two attempts were made to get a "G.C." smear, but no
urethral discharge was found. In April 1964, while stationed
at Fort Gordon, Georgia, the veteran had calluses removed
from both feet.
In September 1965, the veteran underwent a psychiatric
evaluation. He was referred to the psychiatric clinic prior
to administrative action that included a court-martial for
assault and two (2) article 15's. In addition to this
delinquency record, the commanding officer felt that the
veteran was "marginal." His childhood and adolescent life
were discussed. The veteran was alert, well oriented, and
cooperative. He showed fair insight into the nature of his
behavior. His affect was appropriate. There was no evidence
of delusions, hallucination, or other symptoms of psychosis.
The veteran was found to have a chronic and moderately severe
character and behavior disorder (emotionally unstable
personality). The examiner recommended that the veteran be
discharged due to unsuitability.
On a Report of Medical Examination pending discharge, the
veteran's skin, neurological system, chest, and genitourinary
system were shown to be normal. However, a Grade II aortic
late systolic blowing murmur was found. A consultation
report from the cardiac clinic indicated that the veteran had
no past history of heart disease, rheumatic fever, scarlet
fever, or prolonged illness. He admitted to slight
exertional dyspnea but denied peripheral edema, orthopnea,
and paroxysmal dyspnea. His heart was not enlarged to
percussion. The second sound was physiologically split. The
rhythm was regular and a Grade I/VI basal systolic ejection
murmur was noted as well as a Grade I/VI musical apical
systolic ejection murmur. There was no radiation or
transmission of these murmurs. An electrocardiogram and
chest x-ray were within normal limits. The impression was no
organic heart disease, innocent cardiac murmur.
The veteran's Report of Separation from Active Duty (Form DD-
214) indicated that he had active military service from March
10, 1964 to December 8, 1965, and that he served in the Army
as a wireman. He was reported to have had seven months of
foreign and/or sea service. His service personnel records
indicate that he served in Germany. There was no reference
to the veteran serving in the Republic of Vietnam. He has
also not alleged visiting or being in the coastal waters of
Vietnam during his active military service.
In April 1986, the veteran filed a claim for nonservice-
connected pension benefits. He stated that he hurt his back
in 1978, and that he had had disc surgery. He also indicated
that he had been in a motor vehicle accident. He said that
he injured his neck, ankles, and head. He stated he
currently suffered from seizures and a nervous condition.
Medical records from Frank Barnhill, M.D., and Robert E.
Flandry, M.D., dated from July 1978 to July 1985 were
associated with the claims folder. Those records show that
the veteran suffered a low back injury in 1978 that
eventually required surgery. Despite this operation, the
veteran was seen on numerous occasions for complaints of low
back pain with radiation to the lower extremities. In August
1980, the veteran was involved in a motor vehicle accident.
A post-surgery report indicated that he suffered a fracture
and severe avulsion of the right ankle. While he also
complained of neck soreness, the neurological examination was
negative. An examination of his chest, heart, and abdomen
were essentially normal. A May 1991 treatment note indicated
that the veteran was seen for difficulties with his temper.
A brief neurological examination was normal. The veteran's
only problem was personality changes. The veteran underwent
a hemilaminectomy in 1985 due to his continued complaints of
low back pain.
Medical records from Donald McIntosh, M.D., dated from
September 1981 to June 1984 show that the veteran received
evaluations and treatment for, but not limited to, a seizure
disorder, anxiety, chronic dermatitis, and chest pain. Dr.
McIntosh indicated in a September 1981 treatment report that
the veteran had been referred to him by Dr. Stroup for a
history of episodes of chest discomfort and neurological
complaints. These symptoms were noted to have their had
onset in April 1981, and that they followed a February 1981
motor vehicle accident in which the veteran had been in a
coma for 11 days. He gave a history of moderate smoking,
alcohol consumption, and a back injury. The veteran endorsed
substernal chest pain that would radiate to the top of his
head and down to his toes. This symptom as well as
complaints of fainting and anxiety with substance abuse was
followed for several months. In October 1984, the veteran
was admitted for a long history of chronic anxiety with
hyperventilation and an apparent grand mal seizure.
Following a physical evaluation and diagnostic testing, the
pertinent impressions were initial grand mal seizure by
history - rule out intracranial mass, subdural hematoma,
alcohol withdrawal syndrome, and idiopathic seizure; chronic
anxiety - depression syndrome; and atypical chest pain
probably secondary to musculoskeletal etiology.
In addition to the foregoing, a June 1983 treatment note
indicated that the veteran was seen for complaints of chronic
dermatitis of his hands, wrists, and forearms. The veteran
indicated that he was allergic to one of the oils and some
other product used at work. He said that he had been seen by
a dermatologist.
The veteran filed a claim for service connection for a heart
condition in March 1987. He stated that he was seen for
complaints of chest pain during his military service.
Medical records from an unidentified VA medical center (VAMC)
dated from June 1986 to August 1986 show that the veteran was
examined for complaints of a seizure disorder, organic brain
syndrome, and a psychiatric disorder. He was noted to have
been in a motor vehicle accident that resulted in a
concussion. There were no references to herbicides, dioxins,
and/or pesticides.
In January 1993, the veteran filed a claim for service
connection for a nervous condition. He submitted a copy of
an August 1987 decision from the Social Security
Administration that granted him Social Security disability
benefits. The veteran's history of suffering from low back
pain with radiation to the lower extremities and an ankle
problem resulting from a motor vehicle accident was
discussed. He was also observed to have been diagnosed as
having a small sliding hiatal hernia and generalized anxiety.
An April 1987 psychiatric evaluation was reported to have
shown that the veteran suffered from organic brain syndrome
and epilepsy "probably due to his automobile accident." It
was further stated that the combination of physical and
mental problems rendered the veteran unable to function in
any type of employment.
That same month, the RO denied service connection for a
nervous condition. The RO held that veteran's in service
diagnosis of having an emotionally unstable personality was
not a disability for VA purposes. It was also found that
there was no evidence to show that the veteran had been
diagnosed as having a neurosis or psychosis in service or
within one (1) year of discharge.
In February 1995, the veteran filed a claim for service
connection for the residuals of having been exposed to Agent
Orange and/or Agent Blue. While station at Fort Gordon,
Georgia, he stated that he was assigned to cleaning an old
prisoner of war (POW) camp. He contended that he used
"Herbicide Blue" to clear out the weeds. Shortly
thereafter, he maintained that he developed a rash on his
arms and hands which persisted for quite a while. He said he
still had a problem with the rash.
In a letter dated in March 1995, the RO asked that the
veteran submit a statement regarding the nature of the
illnesses and/or diseases for which he was claiming service
connection. That same month, the veteran indicated that he
was seeking service connection for chronic dermatitis, a
chronic seizure disorder, a psychiatric disorder, kidney and
prostate infections, chest pains, dizziness, and a
neurological disorder of the torso and lower extremities. He
also indicated that his claim should include exposure to
herbicides and pesticides as well as Agent Orange.
A May 1994 letter to the veteran's attorney from George S.
Stretcher, M.D., was associated with the claims folder. Dr.
Stretcher indicated that he had been seeing the veteran for
several months for a skin eruption. He said his examination
revealed only the effects of excessive dryness of the skin
which could have been due to a general tendency to dry skin
or over washing of the skin. He noted that the veteran had
been using various drying agents that would contribute to the
dryness. He stated that he could not state with any surety
as to whether the original dermatitis was the result of
exposure to sewage water. Dr. Stretcher added that VA
records identified a possible tinea infection. He added that
exposure to sewage water would not predispose the skin to a
fungal infection. He submitted treatment notes. The first
note dated in November 1993 indicated that the veteran had
difficulties with the septic lines of his house about one
year previously. Attempts to correct the situation resulted
in some back up of sewage into the veteran's bathroom and
bedroom. The veteran reported that a few days after this
incident, he began experiencing difficulty with his skin
which persisted. The impression was severe dry skin.
Similarly, Charles P. Stroup, M.D., informed the veteran's
attorney in May 1994 that the veteran developed a rash on his
extremities after being exposed to a leaking commode. He
said the veteran appeared to have a contact dermatitis, and
that circumstantial evidence would suggest that it was caused
by the leaking commode. He indicated that he referred the
veteran to a dermatologist.
Medical records from the Greenville VA Outpatient Center
(VAOC) dated from October 1986 to December 1986 show that the
veteran was followed for complaints of a seizure disorder,
depression, and anxiety. A December 1986 consultation report
from the neurology clinic indicated that the problems stemmed
from a 1981 motor vehicle accident. There was no discussion
with regard to his military service.
The veteran submitted a February 1995 report from the College
of Agricultural Sciences, Department of Fertilizer and
Pesticide Control. The report pertained to specific
insecticides, and the proper use and environmental hazards of
those chemicals. Based upon an attached letter from the
veteran, this report appears to have been prepared in
contemplation of a civil action against the owners of the
veteran's apartment building and the pest control company it
employed.
Medical records from Dr. Stroup dated from November 1978 to
February 1995 reveal that the veteran was evaluated and
treated for, but not limited to, a seizure disorder, anxiety,
chest pain, prostatitis, and dermatitis. Significantly, a
December 1992 treatment note indicated that the veteran
suffered from contact dermatitis of the legs, feet, and
groin. The offending agent was noted to be unknown.
Subsequent records showed that the rash persisted.
The veteran reported in January 1995 that he had discovered
the cause if his leg rash. He suggested that the rash was
due, in part, to a bug spray that he was exposed to in the
past. He further argued in February 1995 that he had been
exposed to Agent Blue years ago. The veteran opined that
this exposure may have sensitized and thereby rendered him
less capable of warding off the effects of a subsequent
exposure. He added that his other physical problems could
have been related to this initial exposure. Noting that this
was outside his area of expertise, Dr. Stroup indicated that
he would try to get the veteran set up with a toxicologist.
In April 1995, Dr. Alfred Moss reported that his office held
no records pertaining to the veteran. Dr. Moss indicated
that he searched for the veteran's records by name and social
security number.
A letter from Richard S. Roberts, M.D., dated in November
1994 indicated that the veteran underwent an evaluation of
his skin problem. Dr. Roberts stated that the veteran
reported no problems with his skin until 1992, but that,
after his carpet became flooded by a blocked septic line, he
developed a rash on his feet. He indicated that the rash was
pruritic, and that, over the ensuing weeks, it seemed to
spread to his lower extremities and groin. He observed that
a KOH scraping by Dr. Stretcher had been negative. After
having reviewed his medical history and performing a physical
examination, Dr. Roberts diagnosed the veteran as having dry
skin and subsequent neurodermatitis. There were no
references to the veteran's military service.
Conversely, in a letter dated in April 1995, Dr. Alfred S.
Dorsey, Jr., reported that there was no doubt that the
veteran had a chronic dermatitis that was "possibly"
related to chemical contact. Having reviewed the information
and talked to the veteran by phone, Dr. Dorsey indicated that
there was evidence that there had been a more than likely
chemical exposure to chloropyrifos. However, he could not
say conclusively that the veteran's dermatitis and the
exposure were related. Noting the veteran gave a history of
being previously exposed to Herbicide Blue, and that a direct
relationship between the two (2) exposures could not be made,
Dr. Dorsey opined that it should be taken into consideration
that the first exposure "could" have possibly predisposed
the veteran to react to the second exposure. Dr. Dorsey
identified himself as an environmental health scientist and
noted that he worked in the Division of Toxicology, Agency of
Toxic Substances and Disease Registry (ATSDR).
By a rating action dated in May 1995, service connection for
multiple disabilities due to exposure of Agent Orange and
Agent Blue was denied. The RO found that the veteran's
service medical records were negative for any findings of the
veteran's claimed chronic dermatitis, a chronic seizure
disorder, a psychiatric disorder, kidney and prostate
infections, chest pains, dizziness, and a neurological
disorder of the torso and lower extremities. The RO further
determined the veteran had not been diagnosed as having any
of the diseases that were presumed to be related to
herbicides used in Vietnam. Therefore, the RO concluded the
presumption would not attach.
In a statement dated in September 1995, the veteran discussed
the circumstances regarding his alleged exposure to
herbicides and pesticides in service. He stated his basic
training at Fort Gordon took place at an old POW camp that
had been closed since 1947. He said the buildings were used
for storing herbicides, pesticides, and other chemicals. He
recalled that he was assigned to clearing out the overgrowth,
and that this involved dispersing the herbicides and
pesticides. The veteran asserted that he developed a rash on
his legs that persisted for quite a while. He further
indicated that suffered from burning on urination during this
period. In this regard, he noted that testing for sexually
transmitted diseases had been negative. He added that no
showers were provided for several days.
Medical records from the Greenville VAOC dated from June 1986
to April 1996 were associated with the claims folder. Those
records show that the veteran received evaluation and
treatment for psychiatric problems, a herniated nucleus
pulposus of a cervical vertebra, a rash to include a possible
tinea infection, a post-traumatic seizure disorder, problems
with urinary voiding, spinal stenosis with neurological
manifestations, and chest pains associated with panic
attacks.
In January 1995, the veteran was seen for a chronic rash. He
stated that he was exposed to pesticides, and that he had an
Agent Orange type of dermatitis. There were a few areas of
increased pigmentation, but the skin was mostly unremarkable.
He was referred for an Agent Orange examination. However, in
an addendum to this report, the examiner indicated that the
Agent Orange examination was not performed because it was
only available to veterans who served in Vietnam. A
September 1995 consultation report from the neurology clinic
indicated that the veteran associated his numerous health
problems with having been exposed to herbicides while
stationed at Fort Gordon in 1964. The examiner did not
render an opinion on this claim.
Service connection for multiple disabilities as secondary to
exposure to Agent Orange and Agent Blue was denied in May
1996. The RO found that the veteran had not been diagnosed
as having any disability that was presumed to be caused by
exposure to herbicides used in Vietnam. A supplemental
statement of the case was issued that same month.
In a letter dated in February 1996, Woodhall Stopford, M.D.,
indicated that he had been contacted by the veteran regarding
his excessive exposure to organophosphate (OP) pesticides.
Dr. Stopford stated that exposure to OP pesticides, if the
exposure was long or severe enough, could result in nerve
damage of peripheral nerves and the spinal column. He
remarked that any peripheral nerve damage would eventually
heal, but that any damage to the spinal cord would remain.
Responding to the veteran's request under the Freedom of
Information Act (FOIA), soil samples from Fort Gordon were
taken and analyzed. The Environmental and Natural Resources
Management Office reported the findings in a September 1996
letter. The presence of pesticide and/or herbicide residuals
was detected at six (6) areas. However, the detected
concentrations were relatively low, indicating intended use
application at some point. There were no conclusions as to
whether the pesticides or herbicides were used during the
veteran's time at Fort Gordon. A map identifying the six (6)
areas and the analytical reports were attached to this
letter.
In an October 1996 letter to the office of Senator Strom
Thurmond, Douglas Bryant of the South Carolina Department of
Health and Environmental Control indicated he had been
contacted by the veteran. Mr. Bryant stated that the veteran
was concerned over possible exposure to chemicals or
herbicides applied at the Gaffney Country Club Golf Course.
He said an investigation was launched, and that it was
determined that there was no evidence to support an
allegation of misuse or misapplication of a pesticide.
Service connection for multiple disabilities as a result of
exposure to Agent Orange and Agent Blue was denied in
November 1996. The RO determined that there was no evidence
to establish a relationship between any the veteran's claimed
disabilities and his alleged in-service exposure to Agent
Orange or Blue. Moreover, the RO found that the veteran had
not been diagnosed with any disability that was presumed to
be associated with exposure to herbicides. A supplemental
statement of the case was promulgated that same month.
The U.S. Armed Services Center for Research of Unit Records
(USASCRUR) (formerly the U.S. Army & Joint Services
Environmental Support Group) reported in March 1997 that U.S.
Army records documented the testing of herbicides at Fort
Gordon from December 1966 to October 1967. However, USASCRUR
stated that it was not able to document that herbicides were
used at Fort Gordon from March 13, 1964 to May 28, 1964.
In a letter dated in June 1997, the veteran indicated that he
had reviewed the morning reports from Co B 5th Training
Battalion 2nd Training Regiment from March 13 to May 28,
1964. He observed that 27 men were listed as being seen at
the hospital for "LD yes effects." He said that LD did not
stand for Line of Duty but rather "lethal dose." He
further asserted that the findings of the USASRUR were
erroneous. He stated that he and four (4) other men
dispensed between 1200 and 1500 pounds of herbicides during
his initial days at Fort Gordon.
Additional medical records from the Greenville VAOC dated
from August 1997 to October 1997 were associated with the
claims folder. Those records show that the veteran received
treatment for degenerative joint disease of the cervical and
lumbar spines. In October 1997, the veteran was seen for
complaints of having been exposed to harmful chemicals during
his military service. He said he suffered from a chronic
rash, seizures, and neurological problems of the lower
extremities. He maintained that a doctor had told him that
he had Agent Orange dermatitis. Following a physical
examination, the diagnosis was degenerative joint disease of
the lumbosacral spine with radiculopathy. The examiner noted
that the veteran had been asked to volunteer for chemical
testing, but that he had refused.
A letter from R.W. was received in December 1997. R.W.
stated that he had undergone training with the 2nd Training
Regiment at Fort Gordon at the same time the veteran received
his training. He said the training took place on an old POW
camp that was located on the base. R.W. remembered that
spraying was conducted at that time, and that one of his
buddies did some of that spraying. He recalled that his
buddy would complain that the "stuff" would not wash off
his hands. He stated he was unsure as to whether the
spraying was for insect or weed control. R.W. indicated that
he did not personally participate in the spraying.
Nevertheless, he remarked that it was odd that he became sick
with flu like symptoms during the summer.
Medical records from the Greenville VAOC dated from November
1997 to February 1998 show the veteran continued to complain
of a seizure disorder, neuropathy of the spine,
gastrointestinal problems, a skin rash of the lower
extremities and penis, a bladder and kidney infection and
psychiatric problems. Again, there were no findings to
support the veteran's assertion that any of these problems
were caused by his exposure Agent Orange or any other type of
herbicide, pesticide, or dioxin.
In April 1998, the veteran was afforded a personal hearing
before the RO. He stated he underwent basic training at Fort
Gordon. During this time, he recalled that he was in a
detail that dispersed insecticides and herbicides over an old
POW camp. He said the buildings in the camp were used for
storing these chemicals. He maintained that the bags of
chemicals were marked by specific colors, and that they were
referred to in that manner. Rather than being an aerosol,
the veteran stated the chemicals were in a pellet form which
required direct handling. He remarked that the residuals of
the chemicals would not wash off easily. He estimated he was
exposed to the chemicals for about nine (9) weeks. He
asserted that he developed a rash on his fingers, legs, and
feet, gastrointestinal problems, and a psychiatric disorder
during this time. He noted that his service medical records
documented the removal of calluses and evaluation for
psychiatric problems. The veteran contended that he
continued to suffer from physical problems after his
discharge. He said his problem with rashes resurfaced after
he was exposed to an insecticide that was used in his
apartment building. In this regard, he stated that he was
told his initial exposure to chemicals in 1964 had rendered
him less capable of warding off the affects of this second
exposure. He argued that his massive exposure to chemicals
in service was also responsible for his problems with his
spine, bladder, kidney, and prostate. He added he was also
experiencing a problem with having fluid leaking out of his
brain.
The veteran was afforded an Agent Orange evaluation in April
1998. He complained of a skin rash, joint pain, seizures,
headaches, shortness of breath, and various urinary problems.
He added that he was experiencing trouble with his sex life.
In this regard, he reported that he was not married, that he
lived by himself, and that he had not had sex in several
years. The physical examination was essentially negative.
The examiner noted that an electrocardiogram and chest x-ray
had been within normal limits. There was also no evidence of
a skin rash.
In May 1998, the hearing officer denied service connection
for multiple disabilities due to exposure to herbicides and
pesticides including a skin rash, seizure disorder, nervous
condition, kidney infection, prostate condition, chest pain,
neurological disturbance of the torso and lower extremities,
bladder problem, dizziness, and impotency. The hearing
officer held that the veteran has failed to submit a well-
grounded claim. The evidence and testimony were found to be
insufficient to relate any of the claimed disabilities to the
veteran's active military service. A supplemental statement
of the case was issued in May 1998.
The veteran was afforded a personal hearing before the
undersigned in August 1998. He discussed in detail the
nature of his current disabilities and reiterated his story
of being exposed to insecticides and herbicides while
stationed at Fort Gordon during his basic training. Again,
he indicated that the chemicals were identified by the color
of the bags. He said he was never told the significance of
the color-coding. He maintained that the statement from R.W.
clearly established that a variety of herbicides and
insecticides were used during his stationing at Fort Gordon.
He also remarked that tests had confirmed the presence of
herbicides and/or insecticides. The veteran stated that he
developed a severe rash after several days of being unable to
wash the chemicals off his body. He recalled that he was
eventually forced to go to the infirmary to have calluses
trimmed from his feet. He said he also developed
gastrointestinal, behavioral, and urinary problems. He
implied that he was part of a government test to determine
how these chemical affected people. He stated the U.S.
government had a long and dark history of experimenting on
its own soldiers. The veteran further contended that his
exposure to these chemicals in service had rendered him less
capable of resisting the affects of his subsequent exposure
to similar dioxins. Notably, he said he had adverse reaction
to the spraying of insecticide in his apartment.
In a statement submitted at the time of the hearing, the
veteran's representative argued that further investigation
into the veteran's claim was warranted. He contended that
the VA should not only concede the veteran's exposure to
Agent Orange, but it should also investigate what other
chemicals were used at Fort Gordon. He stated that VA was
obligated under the duty to assist to verify details
pertaining to the veteran's military service. After
establishing this exposure, the representative maintained
that the veteran should also be afforded a special medical
examination by an environmental toxicology expert to
determine which of the veteran's disabilities are related to
his in-service chemical exposure. He admitted that the
presumption of the veteran's exposure to Agent Orange was not
applicable because the veteran did not service in Vietnam.
The veteran also submitted 15 folders of evidence in support
of his claims for service connection. Most of this evidence
was duplicative of evidence already of record. There were
several pieces of evidence, however, that were not previously
considered by the RO. Notably, in a March 1980 letter from
John H. McCulloch, M.D., the veteran was noted to have
developed a problem with scaling, redness, itching, and
cracking of the hands and feet. Dr. McCulloch observed that
the veteran had undergone a low anterior colon resection in
1978 for Dukes B2 colon cancer, and that he was currently
taking 5-FU to reduce his risk of recurrence. He said the
veteran's skin problem developed shortly after he started
taking this medication. He stated that he was unsure as to
whether the veteran's skin problem was attributable to the
use of 5-FU.
Extracts from Headquarters Fort Gordon and morning reports
from the 5th Training Battalion 2nd Training Regiment from
March 15, 1964 to May 19, 1964 were included among the
records submitted by the veteran at his personal hearing.
The veteran was listed as being transferred for a duty
assignment on April 30, 1964. Although there appears to have
been an attempt to redact the names of individuals who went
on sick leave, the undersigned found that close scrutiny
allowed for the reading of those names. The veteran was not
listed as being placed on sick leave.
A July 1996 letter from the Headquarters U.S. Army Signal
Center and Fort Gordon indicated that it had received the
veteran's FOIA request for information on pesticides,
herbicides, and hazardous chemicals used or stored on Fort
Gordon from 1960 to 1965. In this regard, the Environmental
and Natural Resources Management Office observed that it was
unable to locate any records for that time period.
Similarly, the Directorate of Public Work (DPW) was noted to
have issued a "no records" response to a FOIA request for
information pertaining to the names of all herbicides,
pesticides, and hazardous chemicals used at Fort Gordon
between 1960 and 1965.
An appeal with regard to the "no records" determinations
was denied by the Office of General Counsel, Department of
the Army, in July 1997. In this regard, the Office of
General Counsel found that thorough file and computer
searches were done of all records in the Environmental and
Natural Resources Management Office and the DPM, as well as
the historical files transferred to storage. It was held
that these search methods were appropriate and reasonably
could be expected to produce the requested records, if they
existed.
Medical records from Dr. Stroup dated from February 1995 to
June 1998 show that the veteran continued to receive
treatment for various ailments including a skin rash,
prostatitis, a bladder infection, and back pain. A February
1995 treatment note indicated that the veteran was
experiencing dysuria, but that there were no urinary
findings. He was also observed to have a persistent rash of
the feet and legs of an unknown etiology and complaints of
dizziness. In June 1996, the veteran reported that he was
exposed to herbicides while playing golf, and that he had
recently developed a rash on his legs. Dr. Stroup remarked
that he told the veteran that he lacked the expertise
properly diagnose the condition. There were subsequent
entries which indicated that the veteran inquired as to
whether his skin problem was related to his exposure to
herbicides in service.
In a letter dated in March 1998, the Veterans Health
Administration (VHA) reported that its office had no records
to document the use of herbicides at Fort Gordon "during the
period in question." The VHA stated that the epidemiologic
study conducted by the Environmental Epidemiology Service was
limited to the use of Agent Orange and herbicides in Vietnam.
In addition to the foregoing, the veteran submitted several
government reports pertaining to researching affects of tear
gas, mustard gas, and LSD. In statements attached to these
reports, the veteran argued that the reports served as
evidence that the government had the capacity to experiment
on unwitting soldiers. He asserted that his exposure to
various chemicals at Fort Gordon without his consent was
another example of this unethical practice.
Additional evidence was received from the veteran in October
1998. This evidence consisted of copies of records and
reports which were already a part of the record.
II. Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303(a) (1998). Where a veteran served 90 days
or more during a period of war, and arthritis, epilepsies, or
a psychosis becomes manifest to a degree of 10 percent within
1 year from date of termination of such service, such disease
shall be presumed to have been incurred in service, even
though there is no evidence of such disease during the period
of service. This presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113,
1137 (West 1991); 38 C.F.R. § 3.307, 3.309 (1998). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1998).
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
The Secretary shall assist such a claimant in developing the
facts pertaining to the claim. 38 U.S.C.A. § 5107(a). The
issue before the Board is whether the appellant has presented
evidence of a well-grounded claim. If not, the appeal must
fail, because the Board has no jurisdiction to adjudicate the
claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993).
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of proof of 38 U.S.C.A. § 5107 (a). Murphy v.
Derwinski, 1 Vet. App. 78, 81. However, to be well grounded,
a claim need not be conclusive but must be accompanied by
evidence that suggests more than a purely speculative basis
for granting entitlement to the requested benefits. Dixon v.
Derwinski, 3 Vet. App. 261, 262-263 (1992). Evidentiary
assertions accompanying a claim for VA benefits must be
accepted as true for purposes of determining whether the
claim is well grounded, unless the evidentiary assertion is
inherently incredible or the fact asserted is beyond the
competence of the person making the assertion. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). When the question
involved does not lie within the range of common experience
or common knowledge, but requires special experience or
special knowledge, then the opinions of witnesses skilled in
that particular science to which the question relates are
required. Questions of medical diagnosis or causation
require such expertise. A claimant would not meet this
burden merely by presenting lay testimony, because lay
persons are not competent to offer medical opinions. Id. at
495.
A claim for service connection requires three elements to be
well grounded. There must be competent evidence of a current
disability (a medical diagnosis); incurrence or aggravation
of a disease or injury in service (lay or medical evidence);
and a nexus between the in service injury or disease and the
current disability (medical evidence). The third element may
be established by the use of statutory presumptions. Caluza
v. Brown, 7 Vet. App. 498, 506 (1995).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in
service, or during an applicable presumptive period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which under case law
of the U.S. Court of Appeals for Veterans Claims (Court), lay
observation is competent.
If chronicity is not applicable, a claim may still be well
grounded on the basis of 38 C.F.R. §3.303(b) if the condition
is noted during service or during an applicable presumptive
period, and if competent evidence, either medical or lay,
depending on the circumstances, relates the present condition
to that symptomatology. Savage v. Gober, 10 Vet. App. 488
(1997).
A. Skin Disorder
As referenced above, the first inquiry must be whether the
veteran has stated a well-grounded claim as required by
38 U.S.C.A. § 5107(a). In the instant case, the veteran has
presented a claim for service connection for a skin rash as
secondary to exposure to herbicides, pesticides, and dioxins
that is well grounded within the meaning of 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. The veteran has claimed that he was exposed to
herbicides, dioxins, and other hazardous chemicals during his
basic training. There is also a diagnosis of various skin
disorder including dermatitis. Finally, Dr. Dorsey has
opined that the veteran's exposure to Agent Blue in service
"could" have predisposed him to react to a second exposure.
See Malloy v. Brown, 9 Vet. App. 513 (1996) (the Court held
that the use of the word "could" did not prevent a medical
opinion from having probative value). The Board is satisfied
that all relevant facts have been properly developed and that
no further assistance is required to comply with the duty to
assist. 38 U.S.C.A. § 5107(a).
On review of the record in this case, the Board notes a
conflict of evidence regarding whether the veteran was
exposed to herbicides, dioxins, and/or pesticides while
stationed at Fort Gordon in 1964. On the one hand, the
veteran claims that he developed a rash on his feet, legs,
and hands after being exposed to hazardous chemicals during
the period in question. R.W. also recalled that herbicides
or pesticides were sprayed at Fort Gordon during his basic
training in March 1964, that his buddy was a part of a detail
assigned to spraying those chemical, and that he complained
of not being able to wash the chemical off his hands.
Moreover, the soil sampling taken by the Environmental and
Natural Resources Management Office confirmed the presence of
pesticide and/or herbicide residuals in six areas of Fort
Gordon. Although the detected concentrations were relatively
low, there can be little dispute that pesticides and/or
herbicides were at one time used at Fort Gordon.
On the other hand, the Environmental and Natural Resources
Management Office and Directorate of the Public Works found
that there were "no records" available that showed that
pesticides, herbicides, hazardous chemicals were used or
stored on Fort Gordon from 1960 to 1965. Further, USASCRUR
was not able to document that herbicides were used at Fort
Gordon in March 1964. Rather, U.S. Army records were said to
have shown that herbicides were tested at Fort Gordon from
December 1966 to October 1967.
On evidentiary evaluation, the Board finds that the reports
from the Environmental and Natural Resources Management
Office and Directorate of the Public Works should be given
greater weight than the lay statements entered by the veteran
and R.W. In this regard, it is noted that the Office of the
General Counsel of the Department of the Army determined that
findings of the Environmental and Natural Resources
Management Office and Directorate of the Public Works were
based on thorough file and computer searches as well as
historical files transferred to storage. The Office of
General Counsel found that these search methods were
appropriate and reasonably could be expected to produce the
requested records, if evidence existed. The soil sampling
report, while indicating the presence of pesticides and/or
herbicides, does not establish the presence of these
compounds at the time the veteran was stationed at Fort
Gordon. In this regard, USASCRUR determined that herbicides
were tested at Fort Gordon in December 1966, one (1) year
after the veteran's discharge. In other words, the presence
of pesticide or herbicide residuals can be linked to the
testing that occurred from December 1966 to October 1967 and
not to the time the veteran was stationed there.
Given these circumstances, the Board must deny this claim as
the preponderance of the evidence fails to confirm that the
veteran was exposed to herbicides, dioxins, or pesticides
during his military service.
B. Impotency
In the instant case, what is lacking under the Caluza test is
medical evidence that the veteran currently suffers from
impotence, and that said condition is related to his alleged
in-service exposure to hazardous chemicals. The United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court") has held in Brammer v.
Derwinski, 3 Vet. App. 223 (1992) that in the absence of
proof of a present disability, there can be no valid claim
for service connection. An appellant's belief that he or she
is entitled to some sort of benefit simply because he or she
had a disease, injury or exposure while on active service is
mistaken, as Congress specifically limited entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability.
Moreover, there is no evidence of a nexus between any
impotence that may be present and the veteran's military
service. The veteran's opinion, standing alone, that he
suffers from impotence due to his in-service exposure to
herbicides, dioxins, or pesticides is insufficient. The
veteran lacks sufficient expertise to render a medical
opinion regarding the etiology of any sexual dysfunction that
he might be experiencing. See Espiritu. Accordingly, the
claim for service connection for impotency as secondary to
exposure to herbicides, dioxins, and pesticides must be
denied.
C. Disabilities Excluding a Skin Disorder and Impotency
Here, there is no medical evidence to establish a causal link
between the veteran's diagnosed seizure disorder, anxiety
disorder, depression, prostatitis, degenerative joint disease
of the lumbosacral spine with radiculopathy, chest pains,
dizziness, and bladder and kidney infections and his military
service. The veteran has not offered any medical opinion
that attributes any of these currently existing disabilities
to military service or to exposure to chemicals during his
military service. The veteran's opinion that his exposure to
herbicides, dioxins, or pesticides in service is
etiologically related to his seizure disorder, anxiety
disorder, depression, prostatitis, chest pains, bladder and
kidney infections, dizziness, and degenerative joint disease
of the lumbosacral spine with radiculopathy does not meet
this standard. As indicated in Espiritu v. Derwinski,
questions of medical diagnosis or causation require the
expertise of a medical professional.
Further, while the veteran underwent cardiology and
psychiatric evaluations in service, the Board observes that
neither an anxiety disorder nor depression was diagnosed.
The cardiology evaluation revealed an innocent murmur.
Similarly, the veteran's in service complaint of burning of
urination was not attributed to any chronic disability in
service. There were also no findings pertaining to
complaints, treatment, or diagnosis of a seizure disorder, a
prostate disorder, a neurological disorder of the torso and
lower extremities, and dizziness. In other words, the
presence of any chronic disability in service was not shown.
Even if the evidence fails to demonstrate the applicability
of the chronicity provision of § 3.303(b), a VA claimant may
still obtain the benefit of § 3.303(b) by providing evidence
of continuity of symptomatology post-service and evidence
attributing the post-service symptomatology to the current
disability. The type of evidence needed to make this latter
determination depends on whether a lay person's observation
is competent to render an opinion on this matter or whether
the opinion may only be rendered by a trained professional.
Evidence of continuity is determined by symptoms not
treatment. However, in determining the merits of a claim,
the lack of evidence of treatment may bear on the credibility
of the evidence of continuity. The Board notes that neither
the veteran nor anyone acting on his behalf has submitted any
evidence suggesting symptoms postservice of a seizure
disorder, anxiety disorder, depression, prostatitis, chest
pains, bladder and kidney infections, dizziness, and
degenerative joint disease of the lumbosacral spine with
radiculopathy prior to 1978.
Consideration has been given to the regulations pertaining
exposure to herbicide agents. Notably, a veteran who, during
active military, naval, or air service, served in the
Republic of Vietnam during the Vietnam era and has a disease
listed at § 3.309(e) shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 C.F.R. §
3.307(a)(6)(iii)(1998). The last date on which such a
veteran shall be presumed to have been exposed to an
herbicide agent shall be the last date on which he or she
served in the Republic of Vietnam during the Vietnam era.
"Service in the Republic of Vietnam" includes service in the
waters offshore and service in other locations if the
conditions of service involved duty or visitation in the
Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii)(1998).
Here, there are no findings that the veteran served in
Vietnam or that his service included being stationed in the
waters offshore or visitation in the Republic of Vietnam.
Moreover, the veteran has made no allegations that he served
in Vietnam. He has asserted that he was exposed to Agent
Orange, Agent Blue and other herbicides in the United States
when he was stationed at Fort Gordon. As previously noted,
38 C.F.R. § 3.307 clearly indicates that the presumption of
exposure to herbicide agents requires some type of service in
the Republic of Vietnam during the Vietnam era. There are no
exceptions. Hence, as there is no evidence of record that
shows that he had active military service in Vietnam during
the Vietnam era, there is no legal entitlement to presumptive
service connection for the claimed disabilities as a residual
of exposure to herbicide agents.
The Board notes that the veteran's representative has argued
that the VA is obligated under the duty to assist to verify
details pertaining to the veteran's military service. As set
forth above, numerous military agencies have performed
searches for records pertaining to the use or storage of
herbicides, pesticides, or hazardous chemicals at Fort Gordon
in 1964. The Board is satisfied that the VA has attempted to
provide any evidence that was in the control of the Federal
Government that could have verified the veteran's alleged
exposure. See Murphy v. Derwinski, 1 Vet. App. 78, 82
(1990). The representative has also asserted that the
veteran should be afforded a special medical examination by
an environmental toxicology expert to determine which of the
veteran's disabilities are related to his in-service chemical
exposure. In this regard, there is no duty to afford the
veteran said examination because his claims for service
connection for a seizure disorder, a psychiatric disorder,
disability manifested by a kidney infection, a prostate
disorder, chest pain, neurological disorder of the torso and
lower extremities, disability of the bladder, impotency, and
dizziness have been found to be not well grounded.
Finally, the Board observes that the evidence submitted by
the veteran in October 1998 was not considered by the RO with
regard to the issues in question. Moreover, the Board
recognizes that the veteran did not waive RO consideration of
this evidence, and that a supplemental statement of the case
was not issued with regard to that evidence. See 38 C.F.R. §
20.1304(c) (1998). However, 38 C.F.R. § 19.31 (1997)
provides that a supplemental statement of the case "will be
furnished to the appellant and his or her representative, if
any, when additional pertinent evidence is received after a
Statement of the Case or the most recent Supplemental
Statement of the Case has been issued." In that regard, as
the evidence received in October 1998 merely duplicated the
evidence that was already of record, the Board finds that
this evidence was not "pertinent" to the veteran's claim.
A supplemental statement of the case was not warranted.
ORDER
Entitlement to service connection for a skin disorder as
secondary to exposure to herbicide agents, dioxins, and
pesticides is denied.
Entitlement to service connection for a seizure disorder as
secondary to exposure to herbicide agents, dioxins, and
pesticides is denied.
Entitlement to service connection for a psychiatric disorder
as secondary to exposure to herbicide agents, dioxins, and
pesticides is denied.
Entitlement to service connection for a disability manifested
by a kidney infection as secondary to exposure to herbicide
agents, dioxins, and pesticides is denied.
Entitlement to service connection for a prostate disorder as
secondary to exposure to herbicide agents, dioxins, and
pesticides is denied.
Entitlement to service connection for a disability manifested
by chest pain as secondary to exposure to herbicide agents,
dioxins, and pesticides is denied.
Entitlement to service connection for a neurological disorder
of the torso and lower extremities as secondary to exposure
to herbicide agents, dioxins, and pesticides is denied.
Entitlement to service connection for a disability of the
bladder as secondary to exposure to herbicide agents,
dioxins, and pesticides is denied.
Entitlement to service connection for impotence as secondary
to exposure to herbicide agents, dioxins, and pesticides is
denied.
Entitlement to service connection for dizziness as secondary
to exposure to herbicide agents, dioxins, and pesticides is
denied.
REMAND
Regarding the claim for service connection for PTSD, the
Board observes as an initial matter that a perfected appeal
to the Board of a particular decision entered by a VA
regional office, consists of a notice of disagreement in
writing received within one year of the decision being
appealed, and after a statement of the case has been
furnished, a substantive appeal received within 60 days of
the issuance of the statement of the case, or within the
remaining one year period following notification of the
decision being appealed.
In this case, the RO denied service connection for PTSD in a
February 1996 rating action. He was issued a Supplemental
Statement of the Case on this issue in November 1996. In an
attached cover letter, he was informed that if the
Supplemental Statement of the Case contained an issue which
was not included in his substantive appeal, he had to respond
within 60 days to perfect his appeal of the new issue. The
question arises as to whether a timely substantive appeal was
filed as to this issue.
Since a timely substantive appeal is a statutory requirement
in order for the Board to acquire jurisdiction over an
appeal, and not a mere procedural technicality, the veteran
should have the opportunity to present evidence or argument
on the issue of timeliness.
Under the foregoing circumstances, the Board is deferring
adjudication of the issue of service connection for PTSD
pending a Remand of the case to the RO for the following:
1. The RO should inform the veteran and
his representative that it will be
considering the issue of whether there
was a timely substantive appeal to the
Supplemental Statement of the Case dated
in November 1996. The veteran and his
representative should be asked whether
they wish to submit additional evidence
or argument pertaining to this matter.
The veteran should also be advised that
he may appear at a hearing to present
argument on this issue. (He may appear
at a regional office hearing presided
over by a hearing office and/or he may
appear for a hearing before the Board of
Veterans' Appeals, sitting either in
Washington, DC or at the Regional
Office.)
2. Thereafter, the RO should adjudicate
the timeliness issue. If any decision is
adverse to the veteran, he and his
representative should be issued a
statement of the case which explicitly
addresses the mandatory filing
requirements for a timely substantive
appeal, as set out in applicable law and
regulations, including 38 U.S.C.A.
§§ 7105, 7108; 38 C.F.R. § 20.202.
Thereafter, they should be afforded an
opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until otherwise notified, but he may furnish
additional evidence and argument while the case is in remand
status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992);
Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this
REMAND is to afford due process. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the U.S. Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals